The Victorian government has proposed legislation to protect police and other emergency workers — but while state pollies talk up their commitment to the police, two court cases show Victoria trying to avoid taking responsibility for their care.

The Sentencing Amendment (Emergency Workers) Bill 2014, part of the Napthine government’s tough on crime posture, increases sentences for people who commit crimes against police officers and other emergency workers.

It was introduced by Victorian Attorney-General Robert Clark, who said on June 26 there was a “need to ensure that emergency workers receive the full protection of the law when treating, caring for and protecting Victorians at times of emergency.”

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But it’s not that simple. In a random accident of timing, two court cases have the potential to expose the government to charges of hypocrisy.

One case is being brought by a former police officer who is suing the government for injuries he sustained after raising allegations of corruption. The government’s defence denies the police officer was an employee or that it owed him a duty of care.

The former police officer is claiming common law damages against the state, while Victoria is relying on a legal argument that holds police to be independent “office holders” and not employees.

So while the government pays their wages, provides their uniforms and empowers them to use weapons, it doesn’t employ them. Consequently, it doesn’t owe them the duty to take reasonable care normally owed to employees.

The other case involves a woman assaulted by police way back in 1996, when a group of police broke into her home without a warrant and beat her unconscious.

Although she was found entitled to compensation by the County Court, the state successfully argued in the Court of Appeal that the officers involved were acting outside the scope of their duty and Victorian was not liable. You may be forgiven for thinking that’s precisely when people might be unlawfully assaulted.

She couldn’t collect the judgment from the offending police officers. One declared bankruptcy.

In May, in an extraordinary case of justice delayed, the United Nations Human Rights Committee found that Victoria’s laws breached the International Covenant on Civil and Political Rights by denying the woman an effective remedy for her injuries.

The government argued that it was not liable because she had not “exhausted all her legal avenues” to recover the money. Legal changes to take effect in December merely restate this defence to give the government maximum wriggle room.

Police owed no duty by the state are not adequately protected if injured, and citizens are not protected if police aren’t indemnified by the state if they step over the line. The result is injustice at multiple levels.

The government won’t comment on the recent case and says it’s considering the committee’s decision in the other. It should withdraw its defence that denies a duty of care in the police officer’s case and accept the judgment in the woman’s case.

The Napthine government has a choice thrown up by this coincidence of timing.

It could deem police to be employees who “receive the full protection of the law” that the government claims to believe in. Police need to know we have their back when they go in harm’s way. And it should take full responsibility for police if they act inappropriately, because victims shouldn’t be put through the wringer to obtain justice.

Or it could do nothing.

Debate on the sentencing legislation resumes in August.

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Peter Fray
Peter Fray
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